A Wisconsin court issued an injunction on Dec. 3 which prohibits a father of nine from having any more children until he demonstrates that he can support the ones he already has. The man owes close to $100,000 in unpaid child support and interest.
Associated Press reports that a similar probation condition was issued in Wisconsin in 2001, prompting a series of unsuccessful appeals. Because the injunction is temporary and dissolves when child support payments resume, the Wisconsin Supreme Court held that it does not violate the due process clause of the Fourteenth Amendment – which implicitly includes the substantive right to procreate – or the Eighth Amendment safeguard against cruel and unusual punishments.
The judge who issued the most recent ruling, however, openly lamented the fact that he did not have the authority to order sterilization. The judge cited “common sense” in declaring that an individual who cannot support children should not have them. An injunction prohibiting procreation was not part of the pre-sentencing investigation guidelines submitted by the state.
The punishment for violating a probation condition which restricts procreation is unclear beyond typical sanctions for violating a court order. Although sterilization is unlikely, as evidenced by Judge Boyle’s comments, any punishment imposed for procreation treads on thin constitutional ice in spite of the undisputed importance of making timely child support payments.
If nothing else, this case illustrates the high stakes whenever family and criminal law intersect – that which appears to be a simple probationary hearing for failure to pay child support can evolve into a complex analysis of state and federal law. If judges continue to issue sentences like the one in Wisconsin, it may not be long before an appeal is carried all the way to the U.S. Supreme Court.